May 20, 2015

Not the end of the matter

And so we returned to Court for the final submissions of Adani Mining and Land Services of Coast and Country. The press were waiting for someone, but I wasn't sure who. After five weeks of evidence, these were the last statements of each party before Carmel MacDonald, President of the Land Court of Queensland, retired to read all the evidence and make her recommendations.

I expected Adani's lawyer to kick off, but Saul Holt QC, for Coast and Country, rose first. He began by listing the key points in the case:
• The Carmichael mine would be Australia's largest, and its sheer size would mean a correspondingly great environmental harm
• The mine site is in an environmentally sensitive area, one that includes springs of exceptionally high ecological value and at least two threatened species
• Large quantities of coal will be exported through an already vulnerable and degraded Great Barrier Reef, and the mine's contribution to global carbon emissions and hence climate change (and ocean acidification) will exacerbate damage to the Reef
• Since Adani submitted its EIS and SEIS, and the Co-ordinator General, Queensland Department of Environment and Commonwealth Minister for the Environment considered the proposal, the information provided has been found to be both deficient and inaccurate, with particular significance for groundwater, the Black-throated Finch and the Waxy Cabbage Palm
• Increased uncertainties created by new evidence about the above make this case the epitome of one in which the precautionary principle* requires that approval of the mine be refused
• The 'aspirational conditions' in the Draft Environmental Authority do not inspire confidence that the mine's impacts will be managed sufficiently to overcome the risk to threatened species. The Draft EA lacks adequate baseline studies and effective modelling that predicts impacts with any degree of certainty, and employs 'adaptive management' techniques that are not transparent in their design, implementation or post-approval processes
• The seaborne thermal coal market has changed considerably since the mine was first proposed such that the economic benefits to Queensland can no longer be assumed
• Adani overestimated the number of jobs and the royalties that would be generated by the mine
• Even Adani's economics expert accepted that the Carmichael mine 'is an extremely risky project'
• The Court is far better informed than any previous decision makers appraising the mine's approval process
• Such are the conditions associated with the mine's approval that they must be approached with extreme caution.

Mr Holt's summing up took all morning and half the afternoon session. Mr Ambrose, for Adani, didn't have much time but made it clear he wanted to finish that afternoon. He employed a far different method. He began by criticising Coast and Country's witnesses' 'personal attacks' on the Applicant's (Adani's) witnesses. He accused them of criticising the Applicant's standards while not providing their own standards by which justify their opinions. (This was inaccurate: both Coast and Country ecologists suggested improved methodologies for assessing habitat.) By merely citing the support of their academic peers, they diminished the weight of their own opinions. Ambrose began to argue rather simplistically, I thought: he gave the impression of being short of time and clutching randomly at his complaints. He argued Adani's groundwater model had been criticised for not including the Doongmabulla Springs, but it was a groundwater model, not a springs model, and should have been judged only on whether it was fit for purpose. Pedantry was the order of his summing up.

Dr Webb's faulting hypothesis was censured, predictably. Ambrose accused Webb of creating an illusion of science that didn't support his hypothesis of a 'mysterious conduit', of which there was no evidence. The lawyer implied collusion by citing far too much detail of what he construed to be inconsistencies in the evidence of Drs Webb and Fensham concerning hydrological sampling. He claimed the 'dressing up' of the Waxie's and BTF's predicaments as a matter of extinction was clearly inappropriate as there were populations elsewhere. He insisted no other cost/benefit analysis other than an input/output model had been required. But Ambrose reserved most condemnation for financial analyst Tim Buckley, who, he claimed, had a 'philosophical aversion to fossil fuels', and had gone on 'a bus trip to Alpha to witness the death of the mines'. I know the trip he was talking about: it included no mines, but rather landowners and communities impact by mining proposals. This did not make Mr Ambrose appear very learned. He overused the verb 'opine' and made it sound rather distasteful; he described witnesses 'trotting out' or even 'concealing' information; he coined 'Buckley's bias' and recalled Morton's Fork**. Finally, in response to Tim Buckley's count of banks that have so far withheld investment, he resorted to, 'It's just untrue'.

Having criticised witnesses for their alleged personal attacks, Mr Ambrose himself proceeded to diminish their integrity and belittle their qualifications.

Mr Ambrose concluded that no good reason had been demonstrated why the mine should not go ahead. Adani has already invested $1 billion and 'deserves' the chance to develop the mine as a long-term investment. The company has demonstrated capability within the environmental considerations.

Throughout the proceedings a third party had been present in Court; the Statutory Party, namely the Chief Executive of the Department of Environment and Heritage Protection. As I understand it, they have to be present, but they contributed little, asking a couple of questions of the odd witness here and there. They are entitled to sum up, however, just like the other parties. I remember at the end of the Alpha case being bitterly disappointed by the final – in fact, the only – statement of the Statutory Party, which towed the government line. It was a different political party in charge then, but, in true civil servant tradition, it was no different this time. Rigorous assessment had been conducted by their Department, the Co-ordinator General and the Commonwealth, as required, in respect of the Mining Lease Application. They were therefore of the opinion that the Court should recommend that the Environmental Authority be granted.

Her Honour has an impossible task. I am not talking about the vast amount of evidence, electronic and on paper, that she must plough through; but what she must do with her superior knowledge. She is only entitled to make recommendations to the ministers responsible for mining approval and Environmental Authority: she is required to make a judgement according to the rules of law. Those laws have been found wanting but not in a way that enables her to throw this case out. The brief for an Environmental Impact Statement and subsequent versions is both too narrow in range and not rigorous enough in depth. Biodiversity Offset Management procedures do not stipulate adequate research and monitoring; they lack realistic time frames and do not provide security of tenure. Approval processes need drastic overhaul and laws need amending. That task is enormous. Imagine how long it will take to convince one politician to lobby for one area of correction? Mines will have been excavated and threatened species long gone extinct. But challenge these deficiencies we must.

* if an action might cause harm to the environment, in the absence of scientific consensus that the action is not harmful, the burden of proof that it is not harmful falls on those taking the action. 'If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation': definition from the New South Wales Protection of the Environment Administration Act 1991
** specious reasoning in which contradictory arguments lead to the same unpleasant conclusion